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eDiscoveryDaily

Failing to Test Search Terms Before Agreeing to Them Can Be Costly: eDiscovery Best Practices

Here’s a big “pothole” that can derail your eDiscovery project.  On Thursday, I’ll discuss how you can learn about several more “pitfalls” and “potholes” and how to avoid them.

As soon as litigation is anticipated, it’s a good idea to begin collecting potentially responsive data and assessing it by performing searches and testing the results.  Because, if you wait until after the meet and confer with opposing counsel to do so, it can be expensive.

On the very first day we introduced eDiscovery Daily over 6 1/2 years ago, we published a post where we discussed the danger of using wildcards in your searches (and how they can retrieve vastly different results than you intended).  I was providing search strategy assistance to a client that had already agreed upon over 200 search terms with opposing counsel.  The attorneys had prepared these terms without assistance from a technology consultant (or “geek” if you prefer) – I was brought into the project after the terms were negotiated and agreed upon – and without testing any of the terms.

One of those searches related to mining activities, so the attorney decided to use a wildcard of “min*” to retrieve variations like “mine”, “mines” and “mining”.  As you know by now if you’ve been a reader of the blog since the beginning (or if you clicked on the link to that original post above), that one search retrieved over 300,000 files with hits because there are 269 words in the English language that begin with the letters “min”.  We ultimately had to go back to opposing counsel and attempt to negotiate a revised search that was more appropriate.

Since the terms had been agreed upon, opposing counsel was understandably resistant to modifying any of them.  It wasn’t their problem that my client faced having to review all of these files – it was my client’s proposed term that they now wanted to modify.  However, because we were able to demonstrate a clear indication that many of the retrieved documents in this search were non-responsive, we were able to get opposing counsel to agree to a modified list of variations of “mine” that included “minable”, “minefield”, “minefields”, “miner” and “minings” (among other variations).  That modified search reduced the result set to less than 12,000 files with hits, saving our client a “mint”, which they certainly didn’t “mind” (because we were able to drop “mint” and “mind” and over 200 other words from the responsive hit list).

However, there were several other inefficient terms that opposing counsel refused to renegotiate and my client was forced to review tens of thousands of additional files (costing tens of thousands of dollars) that they wouldn’t have had to review if they had included a technical member on the team at the beginning and had they tested each of these searches before negotiating terms with opposing counsel.  Doing so would have identified which terms were overbroad and would have led to determining more efficient search terms to propose, saving tens of thousands of dollars in review costs.

So, what do you think?  Do you test your search terms before proposing them to opposing counsel?  If not, why not?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Untimely Motion to Compel Production of Text Messages: eDiscovery Case Law

In Healthwerks, Inc. et. al. v. Stryker Spine, et. al., No. 14-93 (E.D. Wisc., Mar. 6, 2017), Wisconsin District Judge Pamela Pepper denied a motion to compel production of text messages issued by the plaintiffs and third party defendants against the defendant Stryker, agreeing with Stryker that filing the motion almost six months after discovery had closed was untimely.

Case Background

In April 2016, the plaintiffs and third-party defendants filed a motion, indicating that earlier in April 2016, the plaintiffs/third-party defendants had received from Stryker twenty-one text messages, all from a records custodian who had not been working for Stryker until after the filing of the lawsuit.  Several days later, Stryker informed the plaintiffs/third-party defendants that it had not searched any of its other employees’ phones for relevant text messages. The movants indicated that, while Stryker never had objected to their discovery demands that Stryker produce such text messages, Stryker now was arguing that it would not produce the texts absent a court order.

Although Stryker had produced tens of thousands of pages over the course of discovery, the movants argued that the production format did not permit them to search for text messages. The movants also indicated that when asked for more information, Stryker ignored the requests and simply demanded responses to its own discovery requests.  Finally, in April 2015, with trial looming, the movants “isolated the Stryker text issue” and Stryker first said it would look into the issue, but, according to the movants, then refused to review the texts of two key custodians to determine whether they had any responsive texts. The movants claimed that Stryker’s plan was to wait throughout the discovery period to produce the texts, then claim that the movants somehow had waived their right to expect them.

Stryker filed its response in May 2016, objecting that discovery had closed on November 16, 2015, and the movants hadn’t filed their motion to compel until five months later, and one month prior to the then-upcoming trial.  Stryker argued that the movants did not even seek to meet and confer about the texts until April 2016, months after discovery closed.

Judge’s Ruling

Judge Pepper began her analysis by stating: “So. On December 31, 2014, the movants served on Stryker discovery demands requesting any kind of document containing any kind of information about a whole bunch of stuff. Lawyers experienced in these sorts of demands – as Stryker’s counsel are – certainly would have figured out that one electronic form of communication the movants might have been seeking would have been texts.”  Judge Pepper also noted that, “[I]n response to these broad demands, Stryker – over the course of the next ten months – served tens of thousands of pages of discovery on the movants.”

As a result, Judge Pepper said the “The court will deny the motion to compel. As Stryker notes, the movants filed this motion almost six months after discovery had closed.”  Judge Pepper also noted that the “discovery period was quite extensive”, with the movants filing their discovery demands December 31, 2014 and the scheduling order having set the discovery deadline for November 16, 2015 (not to mention nearly a year before during which a discovery deadline was not set by the previous judge assigned to the case).  While she understood the movants’ explanation for why they did not file the motion until April 2016, Judge Pepper stated that “their failure to realize before the close of discovery that they could not search the discovery specifically for texts is not a basis for granting a late-filed motion to compel.”

So, what do you think?  Should the motion have been denied or should the defendant Stryker have been held accountable for lack of cooperation on text messages before the deadline?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

The Sedona Principles Has Been Around Longer Than You May Realize: eDiscovery Best Practices

It has been close to fifteen years since the original public comment draft of The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Production was released.  Even the second edition of The Sedona Principles was published all the way back in 2007 – that’s before the iPhone was even commercially available!  Now, after almost ten years, the public comment version of the Third Edition has now been released.

The Public Comment Version of The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production is a project of The Sedona Conference© (TSC) Working Group on Electronic Document Retention and Production (WG1). The Sedona Principles, first released in 2002, was the first publication for the Sedona Conference Working Group Series and the flagship publication for WG1.

According to their email introducing the new edition of The Sedona Principles, it “reflects many of [the changes over the past ten years], and integrates the more advanced and detailed analysis developed by WG1 during this interim, found in such publications as the 2008 Sedona Conference Cooperation Proclamation, the 2010 Commentary on Legal Holds, the 2014 Commentary on Information Governance, the 2015 Commentary on Protection of Privileged ESI, and the 2016 Commentary on Proportionality in Electronic Discovery.”  It also “follows the further amendments to the Federal Rules of Civil Procedure that went into effect in December 2015.”

Significant changes in the Third Edition include:

  • Updates to the commentary associated with Principle 5, consistent with recent case law on the scope of the duty of preservation
  • Reworking of Principle 8 and its associated commentary, relating accessibility of ESI to proportionality considerations
  • Substantial revision and expansion of Principle 12 and its commentary on forms of production, due to the proliferation of a variety of new ESI sources and types

The 133 page PDF file includes a history of The Sedona Principles, an Introduction that summarizes the role of The Sedona Principles and the main modifications made to Principles and Comments from the Second Edition to the Third Edition, the fourteen principles themselves and detailed Commentaries to the principles which expand on each Principle statement to provide analysis and guidance to the bench and bar on the key legal doctrines and issues implicated by the Principles, as well as any notable exceptions.  It also includes an In Memoriam section to remember the contributions of Richard Braman and Bill Butterfield to TSC.

A list of the fourteen principles is found on pages 32 and 33 of the PDF file (pages 15 and 16 of the primary document) and they reflect ideals that all litigants should strive to meet in their eDiscovery efforts.  In fact, in our webcast yesterday, we referenced Principle 6 when we discussed the Hyles case ruling by Judge Peck and have certainly referenced other principles over the years in this blog.

To download The Sedona Principles, Third Edition (or any of the editions, for that matter) click here.  The public comment period closes on June 30, 2017 and questions and comments regarding The Sedona Principles, Third Edition may be sent to comments@sedonaconference.org.  TSC also plans to announce (sometime in April) a 90-minute webinar where members of the drafting team review the principles, answer questions, and take comments.

So, what do you think?  Are you familiar with The Sedona Principles?  Here’s a good opportunity to become familiar with them!  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Today is The Day to Find Out about Current Trends in eDiscovery: eDiscovery Trends

If you don’t write a daily blog like I do and don’t have a lot of time to keep up with current eDiscovery trends otherwise, you can attend our webcast today for a recap of recent key eDiscovery trends and case law to stay current with today’s trends in eDiscovery, information governance and cybersecurity.

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Key eDiscovery Trends and Case Law for 2017.  This one hour webcast will cover key events, trends, and developments that occurred over the course of last year (or so) and how they impact those in the eDiscovery community.  Examples of trends being covered include:

  • Evolution of eDiscovery Technology
  • Privacy Trends in the US and Internationally
  • Key Trends in Cybersecurity and Data Breaches
  • Continued Evolution of Artificial Intelligence in the Legal Space
  • What Happens Every Minute on the Internet
  • Proliferation of Rules Regarding Attorney Technical Competence
  • Important Cases in Technology Assisted Review
  • Key 2015 Federal Rules Changes and How They Impacted Case Law

I’ll be presenting the webcast with Julia Romero Peter, Esq., General Counsel and VP of Sales at CloudNine and we will condense over a year’s worth of key stories and trends down to a one hour presentation.  When I conducted this presentation recently at the February meeting of Houston Association of Litigation Support Managers, it was called “insightful and thought provoking”.

To register for the webcast, click here.  I write a daily blog and keep abreast of current eDiscovery trends to make it easier for you to keep up with those same trends – now, here’s an opportunity to do so in an hour.  Hope you can attend!

So, what do you think?  Are you up to date in the latest trends in eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Putting Information on File Share Site without Protection Waives Privilege, Court Rules: eDiscovery Case Law

In Harleysville Insurance Co. v. Holding Funeral Home, Inc., No. 1:15cv00057 (W.D. Va. Feb. 9, 2017), Virginia Magistrate Judge Pamela Meade Sargent ruled that the plaintiff’s placement of privileged information on a file share site and distribution of the hyperlink to access that information without providing any protection for the site resulted in a failure to take reasonable steps to protect the information – as a result, the declared attorney-client privilege and work-product protections were waived.  Judge Sargent also denied the plaintiff’s motion to disqualify defense counsel for accessing the information without informing plaintiff’s counsel, but did order defense counsel to pay the plaintiff’s fees and costs in bringing the motion.

Case Background

In this dispute over a fire insurance claim by the defendants against the plaintiff insurance agent, a senior investigator for Nationwide Insurance, owner of the plaintiff company, uploaded surveillance footage to a file share service operated by Box, Inc. and sent an email containing a link to the site to an investigator at the National Insurance Crime Bureau (“NICB”) in September 2015.  The email contained a confidentiality notice indicating that the “e-mail contains information that is privileged and confidential”.  The information on Box was not password protected, but, for a while, only the video was available on the Box site.  The plaintiff conceded that any person who used the hyperlink to access the Box Site had access to the electronic information stored there as it was not password protected.

In April 2016, the Nationwide investigator placed files containing the plaintiff’s entire claims file and Nationwide’s entire investigation file for the defendants’ fire loss on the Box Site to be accessed by the plaintiff’s counsel.  Then, in May 2016, in response to a subpoena, the NICB electronically produced its files – including the email containing the link – to the defense counsel, which gave them access to the file share site containing the claims files.  Defense counsel subsequently accessed the site and reviewed and downloaded the entire claims file, but did not notify the plaintiff’s counsel that it had accessed the information until plaintiff’s counsel discovered the claims file included in materials produced by the defense in October 2016.  As a result of this discovery, the plaintiff moved to disqualify defense counsel; in response, they argued that that the motion should be denied because the plaintiff “waived any claim of privilege or confidentiality by placing the information on the Box, Inc., site where it could be accessed by anyone.”

Judge’s Ruling

In assessing the waiver of attorney-client privilege, Judge Sargent noted that “the court has no evidence before it that any precautions were taken to prevent this disclosure”, observing that the employee who uploaded the information to the site and plaintiff’s counsel both “knew – or should have known – that the information was accessible on the internet.”  As a result, Judge Sargent found that the plaintiff “has waived any claim of attorney-client privilege with regard to the information posted to the Box Site”, noting that the plaintiff “conceded that the Box Site was not password protected and that the information uploaded to this site was available for viewing by anyone, anywhere who was connected to the internet and happened upon the site by use of the hyperlink or otherwise.”

Based on the fact that the plaintiff did not claim that its agent’s posting of its claims file to the Box Site was not an intentional act and that she could not “find that Harleysville, or its counsel, took reasonable steps to prevent its disclosure or to rectify the situation”, Judge Sargent determined that “Rule 502 does not apply in this situation to prevent a waiver of the work-product doctrine”.  As a result, she also concluded that the plaintiff waived any claim of privilege or work-product protection over its claims file.

As for the plaintiff’s motion for disqualification, Judge Sargent noted that “defense counsel have admitted that they accessed the Box Site by the hyperlink provided in the email” and indicated that “[t]his court should demand better” in terms of behavior of the defense counsel.  However, she stated: “Based on the decision that the posting of the Claims File to the internet waived any attorney-client privilege or any work-product protection over the information contained in the file, I find that the disqualification of defense counsel is not warranted in this situation”, calling that “an extreme sanction”.  Instead, she found that “the more reasonable sanction is that defense counsel should bear the cost of the parties in obtaining the court’s ruling on the matter”.

So, what do you think?  Should placing files on a file share site waive privilege?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Something in Common with a Secret Service Agent: eDiscovery Trends

I have something in common with a Secret Service agent.  We both have had a laptop stolen out of a vehicle.

In the case of the Secret Service agent, as reported by CBS New York (and covered by Ride the Lightning), an unoccupied vehicle with Maryland plates was broken into in the driveway of the agent in Brooklyn earlier this month and a bag with a laptop and other items belonging to the agent was stolen.  The laptop supposedly contained sensitive information, including Trump Tower floor plans and evacuation protocol as well as information pertaining to Hillary Clinton’s campaign email investigation, but no sensitive information related to the White House on the laptop.

Other sensitive documents that were in the car were also taken, but it’s unclear what those documents are, according to CBS. The information on the laptop cannot be remotely erased, sources said.

“The U.S. Secret Service can confirm that an employee was the victim of a criminal act in which our Agency issued laptop computer was stolen,” the agency said in a statement on March 17. “Secret Service issued laptops contain multiple layers of security including full disk encryption and are not permitted to contain classified information. An investigation is ongoing and the Secret Service is withholding additional comment until the facts are gathered.”

Ultimately, the NYPD recovered the bag – black with a Secret Service insignia on it – which contained a collection of coins and other items, but no laptop.  There was also video showing the apparent suspect pulling up to the agent’s house and later carrying and disposing the bag.

The same thing happened to me back in 2014, as I was preparing to travel to LegalTech New York (LTNY) with my colleagues and we stopped at a restaurant to wait out a flight delay (during the great New York ice storm of 2014).  Our bags were in my boss’s truck, a mere 12 feet away from the entrance to the restaurant, just around the corner.  Several bags were stolen, including my laptop – the one time that I decided to leave it in a vehicle (I swear).  Now, I always take it with me, even if I’m just stopping at a convenience store for a drink.

Fortunately, the laptop was very well secured with encryption and good authentication security and I don’t keep client data on my local laptop.  That didn’t stop me from changing every online password that I could think of – eighteen of them.  Can’t be too careful.

We like to think that data stored locally on our laptops is more secure that data out on the cloud, but that’s often not true.  Maybe that’s why some think that, by 2020, 92 percent of everything we do will be in the cloud.  With locally stored data, you’re just a stolen laptop away from potentially being compromised.  Even if your job is to protect the president.

So, what do you think?  Have you ever had a laptop stolen?  Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. — The photo above is stock footage, not the actual theft of the agent’s laptop.  I know nothing about the theft, honest!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Defendant Not Required to Modify Production After Plaintiff Fails to Demonstrate Prejudice: eDiscovery Case Law

In Excel Enterprises, LLC v. Winona PVD Coatings, LLC, No. 3:16-cv-19-WCL-MGG (N.D. Ind., Feb. 17, 2017), Indiana Magistrate Judge Michael G. Gotsch, Sr. ruled that despite the fact that the defendant failed to demonstrate that it produced documents kept in the ordinary course of business, the plaintiff failed to demonstrate any prejudice suffered from the current state of the production and granted the defendant’s motion to reconsider the court’s earlier order regarding the format of the defendant’s production.

Case Background

In this breach of contract case, the plaintiff’s counsel informed the defendant’s counsel that the documents in its original production were not searchable and identified the format for the documents it preferred. In response, the defendant converted all of its responsive documents to the plaintiff’s preferred format and delivered them to the plaintiff in the requested format on 8 days later in July 2016.

On that same day, the plaintiff filed a motion to compel alleging, among other things, that the defendant had not complied with the production requirements set forth in Fed. R. Civ. P. 34(b)(2)(E)(i), which requires parties to produce documents responsive to requests for production “as they are kept in the usual course of business” or to “organize and label them to correspond to the categories in the request.”  The plaintiff argued that the defendant’s documents were not presented as they were kept in the usual course of business and asked the Court to compel the defendant to organize and label the documents to clarify which document responded to which specific discovery request.

The Court ultimately granted this part of the plaintiff’s motion, ordering the defendant “to supplement its production to identify by Bates Numbers which documents were produced in response to which specific discovery requests by November 15, 2016” because the defendant’s assertion that it produced the requested documents as they were kept in the ordinary course of business was not sufficiently supported with appropriate evidence.  In response, the defendant filed an instant motion to reconsider, presenting additional evidence (including attaching an affidavit from its Director of Information Technology) in an attempt to show that its production complies with Rule 34(b)(2)(E)(i).  However, the plaintiff objected, arguing that the affidavit failed to explain how the documents were stripped of their metadata and converted to unsearchable .pdf and .tiff files before the initial production or maintained as unsearchable .pdf and .tiff files in its ordinary course of business.

Judge’s Ruling

Judge Gotsch noted that the defendant “had the opportunity to present evidence that it produced the 30,000 documents as they were kept in the usual course of its business”, but its “attempt to so demonstrate was determined to be deficient to such an extent that the Court ordered Winona to comply with the other option under Rule 34(b)(2)(E)(i)—organizing and labeling the 30,000 documents to correspond to the categories in Excel’s discovery requests.”  Even with the affidavit submitted with the instant motion to reconsider, Judge Gotsch noted that the affidavit “clearly describes the process Winona used to produce its responsive documents to Excel, but provides no explanation of how the responsive documents were kept in the ordinary course of Winona’s business.”

However, the defendant also argued that “Excel has yet to offer any argument or evidence that it has suffered prejudice as a result of Winona’s production.”  To that, Judge Gotsch responded, stating that “Winona is correct. Through both its second motion to compel and its objection to the instant motion to reconsider, Excel has merely asked the Court to hold Winona to the form of Rule 34(b)(2)(E)(i) with no discussion of any adverse effect on Excel should the Court deem Winona’s current production of 30,000 documents, in the format explicitly requested by Excel and with important identifying information, complete.”  Noting that Fed. R. Civ. P. 26(b)(1), gives district courts broad powers to manage discovery in their cases, Judge Gotsch stated that “Excel’s demand for strict compliance with Rule 34(b)(2)(E)(i) amounts to a form-over-substance argument. As such, the cost and time Winona would expend to organize and label the 30,000 responsive documents at this time would pose a burden that outweighs the potential benefit of the exercise to Excel.”  As a result, he granted the defendant’s motion to reconsider the court’s earlier order.

So, what do you think?  Was that the right decision or should the court have stuck with its original order?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Requesting 72 Spelling Variations on Five Search Terms Spells Trouble for Plaintiffs: eDiscovery Case Law

In Diesel Power Source et. al. v. Crazy Carl’s Turbos et. al., No. 14-826 (D. Utah, Feb. 23, 2017), Utah Magistrate Judge Brooke C. Wells denied the plaintiff’s Motion for Sanctions for the failure of the defendant to produce ESI, finding that the plaintiff had failed to sufficiently narrow its search terms by introducing 72 spelling variations on the five terms it proposed.  Judge Wells also denied the defendants’ Motion for Order to Show Cause and for Sanctions, finding that the defendants had failed to provide any “certification that the parties made reasonable efforts to reach agreement on the disputed matters.”

Case Background

In this case regarding defamatory comments and photographs allegedly posted on the internet by the defendants about the plaintiffs (who were business competitors), Judge Wells led off her order by stating: “To state that the parties in this matter are not cooperating with each other is an understatement.”  Throughout the case, each of the parties had taken turns filing motions for sanctions and each of the parties had complained to the court about the other side failing to provide requested discovery, causing Judge Wells to note that the case “has sat stuck in the quagmire of discovery despair” since it was filed in November 2014.

The plaintiffs sought sanctions against the defendants for their alleged failure to comply with a May 2016 court order compelling them to produce certain items. Following a hearing held in December 2016, it became apparent that some items were still outstanding. The court took the Motion for Sanctions under advisement before finding in January 2017 that the email search terms submitted by the plaintiffs were “overly generic and result in an undue burden placed upon Defendants”. The court ordered the plaintiffs to provide “five detailed search terms that must be more detailed than those previously submitted”.

Following the court’s order, the plaintiff provided the defendants with five search terms, but also provided 72 “spelling variations” on these search terms for a total of 77 search terms.  Due to the number of search terms, the defendants filed a Motion for Order to Show Cause and for Sanctions, again asserting that the plaintiff was on a fishing expedition and also arguing that the plaintiff had failed to comply with the court’s May 2016 order, asking for sanctions citing to the Ehrenhaus factors.  In response, the plaintiff argued it is easy to search using the 72 “spelling variations” if quotations are used.

Judge’s Ruling

In considering the motions, Judge Wells stated: “After considering all that has happened during discovery the court finds both parties to be at fault. First, the court finds Plaintiff has failed to sufficiently narrow its search terms. Previously the court found Plaintiff’s search terms to be overly generic placing an undue burden upon Defendants. Now, Plaintiff has taken the court’s instruction to provide five search terms to an extreme by supplementing it with 72 additional ‘spelling variations.’ Such an expansion is not within the spirit and intent of the court’s prior orders, its comments during hearings or within the principles of proportionality found in the discovery rules.”  As a result, Judge Wells ruled that “Plaintiff is permitted to use the five search terms it has provided along with three listed spelling variations, three for each of the five search terms, for a total of twenty terms.”

As for the defendants’ motion, Judge Wells stated that “Defendants Motion for Order to Show Cause and for Sanctions not only misstates the record before the court, it also fails to comply with the Short Form Discovery Rules as set forth by Judge Nuffer and as set forth in Local Rule 37-1. Defendants have failed to provide any ‘certification that the parties made reasonable efforts to reach agreement on the disputed matters’ and that provides an additional basis to deny Defendants motion.”  Judge Wells also noted that “[m]uch of Defendants motion is an attempt to draw the court’s attention away from Defendants own malfeasance. There is no excuse for Defendants failure to provide the federal tax returns and bank statements.”

Judge Wells also issued a warning to “both parties that going forward there needs to be a renewed spirit of cooperation otherwise the court will use its inherent powers to sanction the attorneys in this case for the continued stonewalling that has been a reoccurring theme in this litigation.”

So, what do you think?  Should courts rule on limiting spelling variations of search terms?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

For the Fifth Year, Florida is the Place to Be for eDiscovery Education: eDiscovery Trends

The fifth annual University of Florida E-Discovery Conference is coming up one week from today, on March 30, and you can attend even if you don’t plan to be in the state of Florida on that day.

Not surprisingly, given the new technology CLE requirement in Florida, the focus of the conference this year is competence in 2017.  As the conference site notes, it’s “no longer your grandfather’s e-discovery (circa 2005). There are exciting new e-discovery tools, new offerings and huge new challenges against a backdrop of increasing demands for competence by judicial officials.”

Notable speakers include Craig Ball, George Socha of BDO Consulting, David Horrigan of kCura, Ralph Losey of Jackson Lewis, Mary Mack of ACEDS, Kenya Dixon of the FTC, Corey Lee of Hunton & Williams and Sonya Strnad from Holland & Knight.  Not to mention a number of federal and state judges, including U.S. Magistrates William Matthewman, Anthony Porcelli, and Gary Jones, Florida Circuit Court Judge Meenu Sasser, and retired Florida Circuit Court Judge Ralph Artigliere.

The conference includes topics ranging from cloud/social media/mobile devices preservation to collections on a budget to meet and confer to defending your keyword search.  The use of artificial intelligence for document review is explored, as well as efficient and reliable document review using contemporary tools.  The day ends with a judicial panel where federal and state judges discuss what they now expect from clients and attorneys.  A link to the Agenda is here.

For the first time, the University of Florida Levin College of Law is also sponsoring an E-Discovery CareerFest to respond to the growing interest of University of Florida law students in exploring career paths that involve electronic discovery and data analytic skills.  The CareerFest will be conducted the day before the main conference, Wednesday, March 29, from 3:00 to 5:30PM ET.

The 2017 UF Law E-Discovery Conference has been approved for 6 General, 6 Technology and 1 Ethics CLE credits by the Florida Bar.  If you plan to attend in person, the event will once again take place at the University of Florida Levin College of Law campus.  But, if you can’t attend in person, the event will also (once again) be streamed online.

The conference costs $199 to attend in person or $99 to attend via livestream.  Members of the 8th Judicial Circuit Bar Association, ACEDS and Friends of the conference are eligible to receive a discounted rate.  The conference is free to attend in person or via livestream to all employees of federal and state government agencies, judges and judicial staff, students, and academics.  To register for the conference, click on the “Register Now” link on the conference web site here.

So, what do you think?  Are you attending the conference?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.